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Why the ENDA Controversy is More Complicated Than It Looks

By October 15, 2007

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See also: Lesbian and Gay Workplace Discrimination

Oregon LGBT Rights Protester
Photo: Craig Mitchelldyer / Getty Images.

Back in May, I blogged ("Why the Democratic Congress is Sacrificing Its Own Civil Liberties Agenda") on what I saw, and what I still see, as Congress' propensity to propose legislation that isn't actually intended to become law. I wrote at the time:
There's another bill in the works, the Employment Non-Discrimination Act (ENDA), that would prohibit private-sector anti-LGBT discrimination under the same terms that prohibit racial discrimination. President Bush has never rescinded President Clinton's executive order banning anti-LGBT discrimination in the federal government, so there's a possibility he might sign it.

But homophobes shouldn't be worried: Given recent history, I have little doubt that the Democratic Congress will find some way to kill the legislation and blame it on the Republicans. After all, wouldn't it be a terrible development for Democrats if our right-wing president were the first in U.S. history to extend full civil rights protection to LGBTs?
The error I made at the time was my casual use of the term "LGBT." There is in fact no executive order prohibiting "LGBT" discrimination in the federal government; Executive Order 13087 prohibits discrimination on the basis of sexual orientation, but does not include gender identity. This means that transgender Americans are not protected from discrimination within the federal government apparatus.

So now the LGBT-inclusive ENDA has come up for a vote, but co-sponsor Rep. Barney Frank (D-MA) has stripped gender identity language from the bill. The general view on Capitol Hill seems to be that the bill is headed for failure anyway, but there's little reason for certainty on that point. For starters, President Bush still hasn't threatened to veto the legislation. His silence is the key factor here. If we knew, somehow, that the legislation would be vetoed and would not have the two-thirds majority necessary to override a veto, then there would be no reason for Congress not to include gender identity in the ENDA. If you're going to propose symbolic legislation, it makes sense for it to be symbolic in all the right ways.

But Rep. Frank is no dummy, and he wouldn't have stripped trans-inclusive language from the bill if he didn't have a good reason. The optimistic explanation is that there is some chance that a sexual orientation ENDA might actually become law this year, which would be great news for lesbians, bisexuals, and gay men living in the 34 states where it is still perfectly legal to fire an employee solely on the basis of sexual orientation. It wouldn't be perfect, but it would be a huge step forward and it would have a significant effect on people's lives right now.

The pessimistic explanation is that he is trying to move the ENDA debate to the center so that, if things go well for the Democrats next November, the next Democratic president will be able to sign the less comprehensive, and less controversial, ENDA. And this is why some, and I would venture to say most, full-spectrum LGBT rights activists are concerned.

So that's the conundrum. A signed-into law sexual orientation ENDA trumps symbolic legislation, obviously--but if we're going to have symbolic legislation anyway, it should be trans-inclusive symbolic legislation.

The debate would be rendered moot if President Bush would just take a position on the ENDA, but then why would he? Let's assume, for the sake of argument, that he's actually open to the prospect of signing a sexual orientation ENDA. Why volunteer that information and upset his right-wing base, when his approval rating is already low, if the sexual orientation ENDA will never appear on his desk anyway?

Or let's assume, for the sake of argument, that President Bush isn't open to the possibility of signing a sexual orientation ENDA. Why volunteer that information, and upset moderates, when he can sit back, prop his feet up, and watch the Democratic Party and LGBT rights activists duke it out?

I've been critical of leadership in the Democratic Congress before, I think rightly, but in this case criticism of Congress may be misplaced. The issue is not so much Rep. Pelosi or Rep. Frank. It's President Bush. Whether the sexual orientation ENDA will become law this year, or just one more in a long series of symbolic Democratic legislative proposals, is ultimately up to him. Perhaps the best solution for Democrats in Congress would be to pass two bills--a sexual orientation ENDA and a gender identity ENDA--in rapid succession. This would demonstrate Congress' symbolic commitment to the full spectrum of LGBT rights without doing so at the expense of a potentially non-symbolic legislative victory.

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October 15, 2007 at 8:12 pm
(1) Valorie Zimmerman says:

Sorry, I have to vigorously disagree. The stripped bill effectively covers only GLB people who violate NO gender norms. We need the entire bill, to protect ALL sexual/gender minorities. The HRC is the only major GLBT organization not urging a NO vote on the stripped bill. Anything less than fully inclusive isn’t worth having.

October 18, 2007 at 8:04 pm
(2) Tom Head says:

With all respect, the race and color criteria in Title VII do not include (for example) dialect–and it’s still understood that discrimination on the basis of racially-correlated dialect is discrimination on the basis of race. I assume that any decent judge will see orientation-correlated gender role variation in much the same way.

Is the ENDA complete until the gender identity clause is added? Absolutely not. But is an ENDA with sexual orientation better than what we have now? Yes. And since we don’t know what the lay of the land will be in 2009, I favor getting everything in writing now that we can.

October 19, 2007 at 10:42 am
(3) Eric says:

It seems to me that the GLBT folks are borrowing from the political playbook of the hard religious right, the ones who say they’ll bolt the GOP if they don’t get one of their own nominated.

Such tactics may play well in fundraising and to get the troops fired up. But they don’t accomplish much in the reality of politics. In real life, something is usually better than nothing.

October 19, 2007 at 1:13 pm
(4) Tom Head says:

Well, I mean, I can understand the sentiment. Lesbians and gay rights activists have been thrown under the bus for so long by the mainstream progressive movement, and now that they’re finally in the mainstream themselves, they don’t want to pass along the favor by throwing trans folks under the bus. I think that’s a noble and courageous sentiment, and I deeply respect lesbians and gay men who would rather sacrifice their own workplace protections than leave trans folks out.

But the fact of the matter is that we’re not going to get the trans protections actually passed into law this year, so the key question is really whether we want to pass a good new law successfully or try to pass a better new law unsuccessfully. For inspiration we should look at the civil rights movement, which clawed it way to the top step by step–if the Civil Rights Act of 1964 had been rejected because it didn’t address housing discrimination (a la the Civil Rights Act of 1968), then that would have been tragic. We need to take our victories when we can find them.

March 23, 2010 at 7:09 am
(5) delbertsan says:

projections influence ago trend shop

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